Murphy v. State, 92-553

• Decision Date: 08 April 1993
• Docket Number: No. 92-553,92-553
• Citation: 616 So.2d 1100
• Parties: 18 Fla. L. Week. D932 Kenneth MURPHY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1100

616 So.2d 1100

18 Fla. L. Week. D932

Kenneth MURPHY, Appellant, v. STATE of Florida, Appellee.

No. 92-553.

District Court of Appeal of Florida,

First District.

April 8, 1993.

Nancy A. Daniels, Public Defender, and Carol Ann Turner, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.

ON MOTION FOR REHEARING AND/OR CLARIFICATION ON PETITION FOR

WRIT OF MANDAMUS

JOANOS, Chief Judge.

The state has filed a motion seeking rehearing or clarification of the opinion filed in this cause on October 12, 1992. Appellant has filed a petition for writ of mandamus, asking us to enforce the mandate which appellant assumes was issued October 12, 1992. ¹ We deny the petition for writ of mandamus. We grant the state's motion for rehearing, withdraw our opinion of October 12, 1992, and substitute the following.

Appellant, Kenneth Murphy, appeals his sentences as an habitual felony offender. First, appellant challenges the constitutionality of the habitual felony offender statute, section 775.084, Florida Statutes (1989), asserting that it deprives those sentenced pursuant to its provisions of due process of law, it violates the separation of powers principle by depriving judges of sentencing prerogative, and it establishes a capricious system of selective punishment which has no standards of application, and is non-appealable and unreviewable. Second, appellant maintains the trial judge erred in failing to make the findings necessary to support an enhanced sentence. We affirm as to both issues.

Appellant was charged with sale or delivery of cocaine, contrary to the provisions of section 893.13(1)(a)1., Florida Statutes. The state filed a timely notice of intent to seek habitual felony offender sentencing, if appellant were convicted of the charged offense. Subsequently, appellant was found guilty by a jury of sale or delivery of cocaine to an undercover officer. Appellant's motions for judgment of acquittal and for new trial were denied.

The record reflects that appellant had seven prior felony convictions, the two most recent for possession of cocaine on October 25, 1989, and for burglary of a dwelling on May 17, 1991. The cocaine sale for which appellant was being sentenced occurred approximately three months after his 1991 conviction for burglary of a dwelling, and during the period that appellant was on community control for that offense. Certified copies of appellant's prior convictions were received in evidence, without objection by appellant or his counsel. Moreover, appellant did not suggest that either of his two most recent prior felony convictions had been pardoned or set aside in any post-conviction proceeding, although afforded an opportunity to be heard on the issue. In short, appellant conceded the existence of his prior felony convictions which formed the predicate for his habitual offender sentence.

After hearing arguments of counsel on the habitual offender question, the trial court observed that appellant's past criminal record was well documented. Despite the urging of appellant's counsel, the court stated it could find nothing in the presentence investigation report to support leniency. In accordance with this observation, the court pronounced:

... on the jury's finding of guilt as to this charge, he is first adjudicated to be guilty. I am satisfied, based upon the evidence that was received this morning in the form of prior judgments and sentences, that he meets the criteria for classification as an habitual offender. He is, therefore, adjudged to be an habitual offender. As such, it's the sentence of this Court he be committed to the custody of the Florida Department of Corrections for a term of 20 years. He is allowed one hundred and 55 days credit.

With regard to the first issue, appellant has presented the same, or substantially similar, due process, equal protection, and separation of powers challenges to the habitual felony offender statute that have been rejected numerous times. See, e.g., Brazil v. State, 604 So.2d 915 (Fla. 1st DCA 1992); Hodges v. State, 596 So.2d 481 (Fla. 1st DCA 1992); Perkins v. State, 583 So.2d 1103 (Fla. 1st DCA 1991), approved, 616 So.2d 9 (Fla.1993); Wilson v. State, 574 So.2d 1170, 1171 (Fla. 1st DCA), review denied, 583 So.2d 1038 (Fla.1991); Barber v. State, 564 So.2d 1169 (Fla. 1st DCA), review denied, 576 So.2d 284 (Fla.1990); Roberts v. State, 559 So.2d 289 (Fla. 2d DCA 1990); King v. State, 557 So.2d 899 (Fla. 5th DCA), review denied, 564 So.2d 1086 (Fla.1990). Indeed, appellant recognizes that his attack upon the constitutionality of section 775.084, Florida Statutes (1989), previously has been decided adversely to his contentions.

The second issue concerns the trial court's failure to make the statutory findings in support of the court's determination that appellant qualifies for sentencing as an habitual felony offender. See Sec. 775.084(1)(a)...